The rights of journalists to secret information
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 [n5] makes it a crime to publish certain photographs or drawings of military installations. Section 798, [n6] also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [p736] or communication intelligence activities of the United States, as well as any information obtained from communication intelligence operations. [n7] If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they [p737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.
White, concurring in NYT versus USA (Pentagon Papers). That is, prior restraint (censorship) is very difficult to justify, but criminal sanctions for publishing secret information - no problem. White continues
I am not, of course, saying that either of these newspapers has yet committed a crime, or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.
But what about the great civil libertarian Douglas?
As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, “[a]ny prior restraint on expression comes to this Court with a “heavy presumption” against its constitutional validity.”
The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which, in this case, is alleged to be national security.
Near v. Minnesota, 283 U.S. 697, repudiated that expansive doctrine in no uncertain terms.
Again, the government should not be able to censor - to exercise prior restraint. Douglas goes on to consider the information being published:
The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression [p724] of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.
So are the details of US intelligence in North Korea “highly relevant to the debate in progress” ? And Douglas notes:
We start, then, with a case where there already is rather wide distribution of the material that is destined for publicity, not secrecy. I have gone over the material listed in the in camera brief of the United States. It is all history, not future events. None of it is more recent than 1968.
So the value of the information in a public debate and the actual level of secrecy of the information is important! Who knew? And what about the greatest Supreme Court Judge of all time, Thurgood Marshall?
If the Government had attempted to show that there was no effective remedy under traditional criminal law, it would have had to show that there is no arguably applicable statute. Of course, at this stage, this Court could not and cannot determine whether there has been a violation of a particular statute or decide the constitutionality of any statute. Whether a good faith prosecution could have been instituted under any statute could, however, be determined. [p745]
At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 U.S.C. § 793(e) that whoever,
having unauthorized possession of, access to, or control over any document, writing, code book, signal book … or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits … the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it … [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.
Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S.C. § 793(e).
Thurgood Marshall rejects the government demand for an injunction and tells the government to use the laws on the books for a criminal prosecution if it thinks it has a case. And this is exactly what Holder’s DOJ has done.